Turner v. Colon
Filing
44
ORDER signed by Magistrate Judge Gregory G. Hollows on 11/6/12 ORDERING that the order filed on September 14, 2012, has been discharged; Plaintiffs motion for the court to provide a copy of his second amended complaint, filed on October 1, 2012 [ 34], is GRANTED on this occasion only and the Clerk of the Court is directed to provide plaintiff a copy of the second amended complaint (ten pages), filed on December 12, 2011 20 , as well as a copy of plaintiffs exhibit (eleven pages), filed on December 21, 2011 21 , for a total of 21 pages; however, Absent appropriate payment made to the Clerks Office for copies in future, plaintiff will be provided no further copies from his case docket by this court for any reason. (Dillon, M)
1
2
3
4
5
6
7
8
IN THE UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
LEO B. TURNER,
Plaintiff,
11
12
vs.
13
No. 2:11-cv-2343 GGH P
R. COLON, et al.,
14
Defendants.
ORDER
/
15
16
Plaintiff is a prison inmate proceeding pro se and in forma pauperis with a civil
17
rights action pursuant to 42 U.S.C. § 1983. On September 10, 2012, plaintiff filed a request to
18
this court for copies of his documents pertaining to this case, contending that a Correctional
19
Officer Smith (not a party to the instant action) had destroyed all of plaintiff’s property,
20
including, in addition to his eyeglasses, all of his “paperwork” relating to this action. Docket #
21
32. Plaintiff claimed that C/O Smith’s actions had been in retaliation for plaintiff’s having
22
brought the instant lawsuit.
23
No defendants having been served at that time, the undersigned invoked the All
24
Writs Act, 28 U.S.C. § 1651(a), directing the warden of Kern Valley State Prison (KVSP) to
25
inform the court whether plaintiff’s documents pertaining to this case had been removed so that
26
he no longer had access to them or had been destroyed and, if so, why. See Order, filed on
1
1
September 14, 2012. On October 1, 2012, plaintiff filed a motion requesting the court to send
2
him copies of his second amended complaint.
3
Thereafter, on October 8, 2012, counsel for newly-served defendant Colon sought
4
an extension of time to respond to the September 14th order, which was granted by order filed on
5
October 10, 2012. In the interim, on October 15, 2012, plaintiff filed a document indicating that
6
he had written a 602 grievance, on September 25, 2012, regarding C/O Smith’s having allegedly
7
stolen plaintiff’s legal mail and had also written a citizen’s complaint directed to KVSP Warden
8
Biter. Plaintiff contends that unidentified correctional officers entered his cell “and stole the
9
C/O’s name that signed my legal mail to the warden.” Docket # 38. Plaintiff claims his 602
10
grievance and citizen’s complaint “never made it to the warden;” instead, his letter to the warden
11
was intercepted by unidentified C/O’s and sent to the appeals coordinator. Id. Plaintiff reiterates
12
his complaint that his legal paperwork regarding the instant complaint has been destroyed and
13
asks that CDCR be compelled to pay for his court paperwork. Id. Plaintiff indicates that he had
14
received notice that his appeal (staff complaint) had been sent to a staff reviewer and the
15
response was due by October 25, 2012. Id.
16
Defendant Colon’s October 22, 2012, response to the court’s order includes
17
declarations from: KVSP C/O M.A. Johnson, the assigned housing officer for Delta 2 Building,
18
where plaintiff is apparently currently housed; Correctional Sergeant M. Palmer, assigned to the
19
KVSP Receiving and Release (R&R); and C/O H. Smith assigned to the Delta 1 Building where
20
plaintiff had evidently been housed (and apparently the individual against whom plaintiff has
21
made his allegations of having been deprived of his legal property). See Reply at docket # 39,
22
Attachments 1, 2 & 3. C/O Johnson declares that at the request of the KVSP litigation
23
coordinator, he/she searched plaintiff’s cell to determine whether he still had possession of any
24
legal property and whether his legal property had been destroyed and found “a limited number of
25
papers directly related to this case, approximately fifteen pages of legal documents.” Docket #
26
39, Attachment 1, Johnson Declaration, ¶¶ 2-3. When C/O Johnson, who declares he/she did
2
1
not remove or destroy any of plaintiff’s property, asked plaintiff whether any of his property was
2
missing, plaintiff told him/her he was missing property and did not know where it was; according
3
to C/O Johnson, plaintiff was not able to describe either the missing property or where or when
4
the property was lost. Id.,¶¶ 4-5.
5
Correctional Sergeant Palmer declares that he/she conducted a thorough search for
6
plaintiff’s property in the property storage areas, including the R&R property room, the Out to
7
Court and Out to Medical property storage and found no property belonging to plaintiff. Docket
8
# 39, ¶¶ 3-5. Corr. Sgt. Palmer also conducted a search to determine where plaintiff had been
9
housed while at KVSP, discovered he had been housed in Administrative Segregation (Ad Seg)
10
in Unit 1 of Facility B from April 24, 2012, until June 30, 2012, and instructed C/O Tamillo, the
11
officer in charge of Facility B Unit 1, to search for any of plaintiff’s property in the Ad Seg
12
property storage. Id., ¶ 6. According to Corr. Sgt. Palmer, C/O Tamillo reported that none of
13
plaintiff’s property remained in Ad Seg storage. Id.
14
Sgt. Palmer also identifies Article 43 of the Departmental Operations Manual as
15
governing confiscation and destruction of inmate property. Id., ¶ 7. An inmate is allowed the
16
opportunity to mail confiscated property home; if unwilling or unable to do so, in accordance
17
with CDCR policy, such property is either donated or destroyed. Id. Sgt. Palmer declares that all
18
destroyed or donated property is recorded in an inmate’s Central File; following Sgt. Palmer’s
19
search of the property disposition log book for any record of confiscated or destroyed property of
20
plaintiff’s, he/she found no such record. Id.
21
C/O Smith, who declares he has never destroyed or confiscated any of plaintiff’s
22
property nor ever retaliated against him, declares that on August 25, 2012, when plaintiff was
23
released from his cell for dinner, plaintiff informed C/O Smith that “he was feeling suicidal and
24
homicidal and requested to be seen by a mental health professional.” Reply at docket # 39,
25
Attachment 3, ¶¶ 2, 11. When, in accordance with institution procedure, C/O Smith radioed
26
Search and Escort officers to take plaintiff to the Correctional Treatment Center (CTC), Smith
3
1
was told it would be fifteen minutes before the officers would arrive. Id., ¶ 3. C/O Smith told
2
plaintiff he would have to wait for the Search and Escort officers and that, for his own safety as
3
well as the safety of others, he (Smith) would handcuff him and place him in the shower. Id., ¶
4
4. C/O Smith overheard plaintiff ask his cellmate to take his glasses and saw plaintiff hand his
5
glasses to his cellmate, after which plaintiff was handcuffed and placed in the shower to await the
6
arrival of the Search and Escort officers. Id. These officers removed him from the Delta 1
7
Building and while plaintiff was on suicide watch, his personal property remained in his Delta 1
8
Building cell, with only plaintiff’s inmate having access to the cell; no other inmate was assigned
9
to the cell during the period plaintiff was on suicide watch. Id., ¶¶ 5-6.
When, several days later, C/O Smith was told that plaintiff was being released
10
11
from CTC and would be housed in Delta 2 Building, C/O Smith went to plaintiff’s Delta 1
12
Building cell to collect and transport plaintiff’s property. Id., ¶¶ 7-8. Although C/O Smith does
13
not remember whether plaintiff’s eyeglasses were among the personal property he collected,
14
Smith declares that he bagged the property that plaintiff’s cellmate had separated, placed in a
15
corner and confirmed to him was all of plaintiff’s property. Id., ¶ 8. When C/O Smith delivered
16
the bag of property to plaintiff in the Delta 2 Building, plaintiff did not tell him he was missing
17
any property; moreover, C/O Smith declares, he sees plaintiff on a regular basis when he assists
18
with release in Delta 2, and plaintiff has never informed him about any missing property. Id., ¶¶
19
9-10.
20
The three declarations under penalty of perjury have been submitted by non-party
21
prison correctional staff and although there is no explanation for how of any of plaintiff’s
22
property related to this case may have been lost, there does not appear to be any evidence that
23
plaintiff’s legal property has been stolen, confiscated or destroyed by C/O Smith or any other
24
correctional officer. In any case, the order filed on September 14, 2012, has been discharged. As
25
of October 29, 2012, defendant Colon, evidently the only one of the four named defendants who
26
has yet been served, filed a motion to revoke plaintiff’s in forma pauperis status. Because, for
4
1
whatever reason, plaintiff does not have a copy of his second amended complaint, filed on
2
December 12, 2011,1 the court on this occasion only will direct the Clerk of the Court to provide
3
plaintiff with a copy of plaintiff’s second amended complaint, as well as a copy of the exhibits
4
plaintiff submitted that were filed separately.
5
Accordingly, IT IS ORDERED that:
6
1. The order filed on September 14, 2012, has been discharged;
7
2. Plaintiff’s motion for the court to provide a copy of his second amended
8
complaint, filed on October 1, 2012 (docket # 34), is granted on this occasion only and the Clerk
9
of the Court is directed to provide plaintiff a copy of the second amended complaint (ten pages),
10
filed on December 12, 2011 (docket # 19), as well as a copy of plaintiff’s exhibit (eleven pages),
11
filed on December 21, 2011 (docket # 21), for a total of 21 pages; however,
3. Absent appropriate payment made to the Clerk’s Office for copies in future,
12
13
plaintiff will be provided no further copies from his case docket by this court for any reason.
14
DATED: November 6, 2012
15
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE
16
17
GGH:009
18
turn2343.ord2
19
20
21
22
23
24
1
25
26
The court order plaintiff to provide the documents necessary for service upon defendants
of the second amended complaint by order filed on March 7, 2012; ultimately, plaintiff did not
submit the requisite documents until July 26, 2012, and the court ordered the service of the second
amended complaint by order filed on August 16, 2012.
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?